D.A.D. & P.C.D., Plaintiffs, v. D.A.S. & A.M.S., Defendants. (2021)

In this matter, this Court convened a special approach to a longstanding matter in an effort to get to a conclusion that would serve the best interests of the litigants and the Court system. While the Court took an unusual procedural step, this Court believes that the interests of justice were best served by the Court's initiative.

The pending matter is a petition by grandparents for visitation with their California granddaughters. The matter has been pending for years and there were several days of trial in which the grandmother testified — subject to cross-examination — and the grandfather testified as well. After the conclusion of this testimony and with a brace of additional days scheduled, this Court elected to invite the parties to consider an over-arching legal issue of whether the matter could be resolved as a matter of law based on undisputed facts, established by documents, sworn statements and evidence already in the record. The parents then brought a motion for summary judgment which, after the filing of responding papers, the Court now considers.

A grandparent petition under Section 72 of the Domestic Relations Law requires a grandparent to prove standing — that the grandparents have reasonably attempted to visit with their grandchildren — and if standing is established, then this Court can consider whether the visitation is in the “best interests” of the grandchildren. NY DRL § 72. In that regard, the issue then becomes two-fold: if the parents strenuously oppose visitation - a fact that the extended duration of this litigation might easily attest to - and if there is undisputed evidence that the animosity between the parents and grandparents is at such a height that under the Court of Appeals decision in Wilson v. McGlinchey, 2 NY3d 375 (2004), “best interests” cannot be established, then the grandparent petition cannot succeed. In Wilson v. McGlinchey, the facts in the petition were different from those in this matter: a parent there sought to discontinue grandparent visitation. But the principle that emerges from the Court of Appeals is undeniable: “worsening relations between the litigants” when combined with “strenuous objections by the parents” precludes grandparent visitation because the child's best interests can only be advanced “by shielding the child from the animosity and dysfunction between the parent and grandparents.” Id. at 382.

The Court of Appeals refined the test for grandparent visitation in E.S. v. P.D., 8 NY3d 150 (2007) in which the Court found that father's objections to grandparent visitation concerning the grandmother's caregiving skills were “contrived” and his claims of ill will “exaggerated” and “tailored to raise the specter of family dysfunction.” In reaching that conclusion, the Court told trial courts that they should examine, as a factor, “the reasonableness” of a parent's objection to grandparent access. In applying these tests — whether the denial of visitation was “reasonable” or whether the denial was based on elevated animosity that would preclude a finding that visitation was in the “best interests” of the grandchildren — the New York courts have examined a variety of factors. See Matter of Vandenburg v Vandenburg, 137 AD3d 1498 (3d Dept 2016)(grandparent visitation denied when petitioning grandparent directed disparaging or demeaning comments at various members of her family); Matter of Articolo v Grasso, 132 AD3d 1193 (3d Dept 2015)(grandparent visitation denied because the parents were justifiably hurt and concerned by grandparent behavior); Matter of Susan II. v Laura JJ., 176 AD3d 1325 (3d Dept 2019)(visitation granted because the mother's objection to visitation was based on an unfounded allegation and adding that animosity cannot be based upon tenuous reasoning and delusional thinking that has no support in the record); Matter of Judith DD. v Ahava DD., 172 AD3d 1488 (3d Dept 2019)(the evidence indicating that the grandmother was hostile to the mother was a factor in denying visitation); Matter of Jones v Laubacker, 167 AD3d 1543 (4th Dept 2018)(If the animosity threatens to disrupt the harmonious functioning of the family unit, visitation is denied.); Matter of Smith v. Ballam, 176 AD3d 1591 (4th Dept 2019)(citing grandmother's animosity toward the [mother], with whom the child [now] reside[s] as a factor in denying visitation); Matter of Velez v White, 136 AD3d 1235 (3d Dept 2016)(open hostility to those who had custody of the child supported denial of visitation); Matter of Wendy KK. v Jennifer KK., 160 AD3d 1059 (3d Dept 2018)(the parents’ reasons for the objections to visitation are an important factor is resolving grandparent petition).

In this matter, this Court had earlier rebuffed an attempt by the parents to dismiss the grandparent's petition on the basis of lack of pleading to justify standing. The Court held that the petition on its face survived the motion to dismiss. See D.A.D. v. D.A.S. et al., 114 N.Y.S.3d 185 (Sup. Ct. Monroe Cty 2019). As a result, after disclosure, the matter was set down for trial. However, after the mother testified — subject to cross-examination — and after the father testified — without cross-examination — the Court concluded that there were undisputed facts — in the form of documents and communications — that could be assessed in determining whether the animosity test under McGlinchey v. Wilson could be overcome by the petitioning grandparents.¹ Despite the grandparent's protestations, these undisputed facts prove, beyond any reasonable criteria, that the level of animosity in this case would never permit grandparent visitation.

Before advancing its analysis, the Court must clarify one other factor. In their submissions to this Court and related trial testimony to date, both parties have plunged this Court into all the details of the 15-year-old relationship between the grandparents and their son-in-law. The submissions chart alleged grievances that go back to the parent's college days, turmoil over the parents’ pre-marital relationship, the son-in-law's prior personal relationships in college, the couple's wedding when the daughter denied the grandfather the courtesy to escort his daughter to the exchange of vows, the grandfather testifying in a criminal matter involving a priest who abused his son-in-law on behalf of the priest and as a character witness against his son-in-law, the son-in-law's work for his father-in-law, disputes over family parties, allegations that a therapist, who intervened in the family years ago divulged confidential information to the son-in-law in violation of the therapist's code of professional conduct, and a slew of allegations of intra-family fights and indignities. Both parties, in raising these slights and allegations in this proceeding, are apparently asking this Court to reach a conclusion confirming that their version of these incidents is either true or false. In particular, the grandparents are seeking a judicial determination that their conduct and comments have been justified based on their son-in-law's conduct and character. However, this Court declines to unravel — or in any manner, resolve — whether the serious allegations of allegedly inappropriate conduct by either side are true and whether the associated conduct by either the parents or the grandparents occurred and whether it was justified. The question before this Court is whether the level of animosity — today — justifies denial of the grandparent petition. There is no doubt that all the prior detailed events over 15 years — whether true or false — have aggravated everyone involved.² But, if the confluence of animosity that flows from those events exists at an impermissible intolerable level today, then this petition must be dismissed.

The undisputed facts easily demonstrate an exorbitant level of justified animosity in this matter. First, the parents are strenuously opposed to visitation. They have resisted every suggestion for resolution of the pending petition and have adamantly opposed letting these grandparents have any access to their children. Importantly, the grandparent's daughter, the mother of the children, has steadfastly rejected any exposure of her children to her parents. The mother has submitted an affidavit attesting to the longstanding and still current turmoil with her parents while supporting her husband. This factor is important in weighing the level of animosity present because the grandparents’ own daughter — mother of the children — attested to how her parents words were untrue, adding that they engaged in “deplorable conduct”, “I feel hurt for my husband,” her parent's accusations were “incredibly hurtful, derogatory, disgusting and demeaning”, “they [the grandparents] have never seen the hurt their insults and claims have done to my husband,” her father accused her of being a “partner in perjury,” [the grandparents] claims that she was “damaged, assaulted and corrupted” — were untrue — and “deeply deeply disturbing.” She concluded: “With allegations like this coupled with allegations that my husband sexually abused me, I never want to interact with my parents again and I never want my vulnerable minor children to interact with them either.” The mother concludes by stating:

The stress, emotional distress, tension, depression and anxiety from the increasing tension and hostility [between the families] and from even thinking of the possibility or visitation is debilitating. Just the thought of [my parents] makes me feel uncomfortable and irritable.3

As a second factor evincing the high level of animosity, it is undisputed that in 2018, when the parents lived in New York, they sought orders of protection against the grandparents, alleging in sworn statements that the grandparents violated certain portions of the New York Penal Law, engaged in disorderly conduct, harassment, aggravated harassment, coercion in the second degree, reckless endangerment, menacing in the second degree, stalking in violation of Section 120.45 of the Penal Law, attempted assault and assault in the second degree.⁴ The filing of these orders of protection occurred just as the parents cut off visitation by the grandparents. It is further undisputed that the parents eventually withdrew those orders of protection but, the parents swore that the underlying allegations of violations of New York's Penal Law were true. As further evidence of the highly contentious nature of the relationship between the parents and grandparents today, the grandparents contended, in response to the summary judgment application now before the Court, that these petitions for orders of protection “were entirely frivolous, filed with slander, disgusting false and perjurous statements.”

Third, in response to the parents filing for orders of protection, the grandparents brought a civil action against their daughter and son-in-law, asserting claims for abuse of process, malicious prosecution, prima facie tort and intentional infliction of emotional harm. In those civil actions, the grandparents swore under oath that their daughter and son-in-law lied about the grandparent's activity in filing for the orders of protection. Those civil actions, in which the grandparents are seeking punitive damages against the parents, are still pending.

Fourth, perhaps even more significant, the grandparents both have recently sworn under oath, repeatedly, that their son-in-law is a liar and manipulator, who sexually abused their daughter, to whom he has been married for more than 12 years. The grandmother testified under oath during the trial as follows when questioned by her pro se son-in-law:

Grandmother: ․ It's all such lies and manipulation, [son-in-law], and I don't want to go through this.

Q. [Grandmother], when you are saying that I am lying and I'm manipulating —

A. You do lie, [son-in-law]. You do․

Q. Did you state in this e-mail that [your son-in-law] is treating you, [my wife] with no respect. He is manipulative and a liar?

A. Yes.

Q. So [grandmother], you have believed that [the son-in-law] is — you have said and stated that [son-in-law]is manipulative and a liar from 2007, and then recently in your petition you repeated that; is that correct?

A. Yes.

Q. So [grandmother], have you stated now for a period of 14 years that [your son-in-law] is manipulative and a liar?

A. Yes.

The grandfather has made similar sworn statements regarding his son-in-law's character for almost two decades. In prior sworn statement to the Court, the grandfather states: “DAS is a known liar, manipulative, controlling and there is little doubt he has been so to our granddaughters.” This sworn statement is further evidence of the current high level of animosity between the grandfather and the father: the grandfather speculates about the relationship of the father and his daughters even though there is no evidence that the grandfather has observed the father interacting with his children in more than five years. The grandfather has never backed away from that characterization of his son-in-law. The grandfather, in his recent submission to the Court, describes his son-in-law as:

a deeply wounded human person in need of real love as evidenced by his years or habitual lying, conning, gaslighting, disregarding the right of others, sexual deviancy, etc.

While the undisputed evidence in this instance clearly establishes an extraordinary level of animosity between the parents and grandparents in this matter, the grandparents somehow suggest that there is no animosity extending from them to the parents. In that regard, the grandfather justifies his torrent of criticism of his son-in-law's character and conduct as motivated by “good will:”

Telling the truth when done for the good of others, even if hard for them to hear, is for their own good. The petitioners are not afraid to seek and stand firm in the truth and have repeatedly done so in engaging with DAS over the last 15 years. The petitioners’ conduct are NOT acts of hostility or animosity but reflect the very nature of goodwill.

The grandfather, in his submission, states, matter-of-factly, that evidence would show the grandparent's “conduct is one of prudence while seeking peace and reconciliation.” In the grandparent's view, all of their conduct is not hostile or motivated by animosity but instead, a manifestation of their good will toward their daughter and her husband. The grandparents even suggest that all of their conduct and statements — regardless of how these actions impact their son-in-law or their duaghter — is somehow beneficial to their daughter and son-in-law. This Court, which must deal in the real world of words and actions, disgarees with this simplistic self-righteous view of the evident conflict between these family members. Calling a family member — your own daughter or her husband — a liar and manipulator or sexual deviant cannot ever be considered a gesture of goodwill, as these grandparents contend. Commencing civil actions against your daughter and son-in-law cannot be considered good will from any perspective. Any realistic assessment of the grandparent's conduct here easily demonstrates how their words and actions have created an elevated level of animosity and hurt to the father and mother of these children. These actions over the course of 16 years could never be charatcerized as somehow correlated to good will.

Nonetheless, the grandparents ask this Court to find that because they claim their actions were motivated by “good will” that somehow mitigates against a finding of a high level of animsoity — an unbridgeable gulf — between the parents of the children and the grandparents. In this Court's view, based on undisputed facts, the actions of the grandparents have fueled an unacceptable level of interpersonal animosity and that factor dwarfs all others in the analysis under Section 72 of the Domestic Relations Law. The grandparent's hostility to the parents is rampant and their actions and statements are real, demonizing, and destructive of either parent's self-respect.⁵

The New York courts have repeatedly given parents substantial rights in raising children. The courts should not lightly intrude on the family relationship against a fit parent's wishes. “The presumption that a fit parent's decisions are in the [grand]child's best interests is a strong one” E.S. v. P.D., 8 NY3d at 157. In this instance, the Court had already entertained days of trial and scheduled additional days. The trial testimony was confined solely to the grandmother and the grandfather's direct testimony. But, the undisputed facts — documented years before — paint a picture of a fractured family, fed by the grandfather's continual articulation — seconded by the grandmother — that his son-in-law was a liar and manipulator who had abused his daughter. There is no evidence in the current posture of this matter that either the grandmother or the grandfather are backing down from their claims against their son-in-law.

This Court will not allow these grandparents to use the Domestic Relations Law to arbitrate the longstanding internal disputes in a highly stressed family. The level of animosity between the grandparents and parents in this instance — documented through undisputed evidence in the middle of a trial — is stratospheric and swamps any other factor in evaluating this petition. Under the Court of Appeals reasoning in Wilson v. McGlinchey and the associated caselaw, the petition here cannot be justified.

This Court is deeply saddened and discouraged by the unraveling of this family. There is substantial evidence that the grandparents have strong and beneficial personal relationships with their other children and their families. The grandparents argue, based on the strong relationships with their other children, that the visitation envisioned by this petition could benefit their grandchildren. But given the undisputed evidence of intense animosity in this case, that relationship could exist only if this Court closed its eyes to the demeaning, degrading, hurtful and harmful language, allegations, insinuations and inappropriate conduct asserted by the grandparents against the children's parents. This Court will not permit these parents to suffer that indignity any further.

The petition is dismissed. The trial is removed from the Court calendar.

SUBMIT ORDER ON NOTICE 22 NYCRR 202.48.

FOOTNOTES

1.   In reaching this conclusion, the Court notes that it never concluded that standing existed. Instead, the Court, in this decision, presumes that standing for these grandparents exists. There was evidence, again largely undisputed, that the parents and children had lived with the grandparents for some time in New York and evidence that the grandparents had visited the children in California more than decade ago. The grandparent petition was filed in 2018 and therefore, as a result of the parent's opposition, there had been no visitation since then. The Court notes that while the parents may have had a different view of the success of the grandparent's interaction with their children, nonetheless the grandparents had made an effort to visit the children and had a history of interactions with the grandchildren before the chill of the orders of protection sought by the parents and the civil actions brought by the grandparent caused a shut-down of any visitation. Thereafter, the parents and children moved back to California.The parents have not had any contact with their grandchildren for more than three years.

2.   As evidence of the intensity of emotion underlying this application, the Court notes that the son-in-law, an attorney in California, submitted a 42-page rendition of the facts related to the level of animosity in this matter. This Court need not resolve whether those comments are true or false: regardless, they are evidence of the heightened level of animus of the parents toward grandparents.

3.   In the grandfather's submission, he claims that he and his wife are “quite capable of managing their emotions in engaging the parents.” Even if the Court reached that conclusion, the parents interactions with their daughter would, based on the daughter's sentiments, cause her substantial grief and stress — without even contemplating the emotions that such interactions would cause the husband.

4.   The son-in-law, by then an attorney, also assisted the maternal great-grandmother in securing an order of protection against the grandfather on many of the same grounds.

5.   In his submission, the grandfather appals to this Court's sense of “moral reasoning” and suggests that when combined with the spirit of New York's grandparent visitation law, the best interests of the grandchildren in “unfortunate cases of deep family estrangement” should prevail. This Court declines to march down the path of “moral reasoning” and instead follows the legal reasoning of the Court of Appeals that a court should not overrule a parent's decision to bar a grandparent from visitation if justified — as here — by an intolerable level of intra-family animosity.

Richard A. Dollinger, J.